Social media's clout worries legal system

Four weeks ago, truck driver Michael Jakscht was found guilty of manslaughter and aggravated assault for a 2010 accident in which he drove his truck over nine motorcyclists, killing four. After the accident, he tested positive for methamphetamine.

It was his second trial -- the first ended in a mistrial -- and both were tense. The courtroom was full of victims and families of the dead who were angry at their loss.

That anger made its way on to Facebook, on a page titled "Oops, You Didn't See Me."

There, the victims posted their impressions of the trial. More than one referred to Jakscht by an obscenity.

"(Jakscht) did not have a dollar in the bank," one victim posted. "He spent all his welfare money on methamphetamine."

Jakscht's defense attorneys discovered the Facebook page before the verdict was delivered and worried they would have to get Jakscht out of state for his safety if he was acquitted. They also worried jurors would see the page and be prejudiced.

Social media, which have become a familiar part of people's lives, increasingly are making themselves felt in the criminal-justice system, and attorneys and judges are concerned. In a traditionally closed system in which information is carefully meted out to ensure a fair process, social media can be disruptive.

Victims' and defendants' families are creating Facebook pages about cases. Attorneys have researched potential jurors on social-media sites. Gangsters are menacing witnesses with social-media postings. Journalists are texting and tweeting from the courtroom.

Jurors have used search engines during trials to look up information related to the case.

Rosalind Greene, a Tucson attorney and jury consultant who writes about social media and the courts, pointed to a Thomson Reuters study that found that at least 90 verdicts were appealed from 1999 to 2010 across the country because of Internet or social-media gaffes and that 28 were overturned. Half of the appeals occurred in 2009 and 2010.

As a result, courts are working to update policies on how to deal with the technology. In Arizona, a committee appointed by the Arizona Supreme Court and composed of lawyers, judges, academics and press officers is drafting rules for use of smartphones, laptops and social media in courtrooms.

Determining those rules isn't easy.

"Where do you draw the line between the First Amendment rights of the press and the viewers and the fair-trial rights of the defendants?" asked Genelle Belmas, a communications professor at California State University-Fullerton who teaches First Amendment law.

The Internet has become a part of the criminal-justice system, whether it's court records posted online or attorneys marketing themselves on Web pages.

But social-media outlets such as Facebook and Twitter go further: They enable anyone to publish thoughts and information to large audiences. This exponentially increases the risks of jury tainting, witness tampering and ethical lapses on the part of judges and attorneys.

Some of the biggest concerns relate to juries.

Traditionally, court trials are self-contained, and juries are meant to make decisions based only on information a judge allows attorneys to present. Social media, even Web searches, open juries up to leaks. That has led Arizona state courts to look at rewording juror admonitions.

Jurors have been told for years not to read newspapers or watch TV news about the trial they are sitting on. Now, they must be told not to do their own research on a case online and not to post anything on Facebook or Twitter, as it might reveal their opinion or prompt responses.

"There's so much information out there which may not be true, and they (the outside sources) don't get cross-examined," said Greene, the jury consultant. "The problem is the court can't rein in the social-media part."

"Jurors are curious," she added. "They're no longer satisfied with just what they get in the courtroom."

The Thomson Reuters research included a three-week monitoring of Twitter in 2010 for tweets about jury duty. Tweets from people who identified themselves as sitting or prospective jurors took place every three minutes, Reuters reported.

The Arizona Supreme Court's Committee on the Impact of Wireless Mobile Technologies and Social Media is considering issuing cards to jurors to remind them of what they can't do. They also are considering jury-room posters emblazoned with the Facebook "F" and Internet Explorer "E" in red circles with bars across them. "Do not send or read messages about this case," the suggested wording says, "because your verdict must be based on evidence presented in court."

State Supreme Court Justice Robert Brutinel, who chairs the committee and is a Twitter user, said that when someone asks him whether social media belong in the courtroom, "I keep asking, 'Why not?' "

Still, he recognizes the risks. "Clearly, the use of social media is affecting courts across the country," he said.

Several judges and attorneys in Arizona said they knew of no instances in which a jury case was compromised or a lawyer disciplined because of social-media use.

But incidents in other states and countries have raised alarms:

A juror in Britain in 2008 polled her social-media "friends," asking if she should find a defendant guilty or not guilty.

In Baltimore, five jury members friended each other on Facebook during a 2009 political- corruption trial and discussed details of the case. It resulted in a mistrial.

Also in 2009, a New York state judge was disciplined for friending lawyers on social media.

A juror in Michigan in 2010 posted a preview of a verdict on her Facebook page, writing, "Gonna be fun to tell the defendant they're GUILTY."

Last year, a federal judge in New Jersey went on Facebook to check out a witness whose testimony she doubted. She was discovered when she mentioned it in a footnote to a ruling.

Jennifer Willmott, one of the attorneys for Jakscht, said if jurors had stumbled upon victims' comments on Facebook, their impartiality might have been compromised.

"It (the set of posts) riles everybody up, and for somebody who hasn't been to trial, it can certainly prejudice any of the jurors," Willmot said.

Other Facebook pages created for Arizona cases include one called "Mark Goudeau Innocent," referring to the "Baseline Killer"; one decrying Elizabeth Johnson, whose baby, Gabriel, disappeared; and several about Jodi Arias, who is accused of killing her ex-boyfriend. Johnson and Arias face trial this fall.

The case of Casey Anthony, a young Florida mother acquitted of murdering her toddler, led to Facebook pages with names like "America Hates Casey Anthony."

Social-media use also can affect criminal investigations.

Deputy Maricopa County Attorney Vince Goddard said gang prosecutors have been bedeviled by the speed with which criminals and their friends transmit information about informants and witnesses via social media. As a result, it becomes harder to get people to testify in court.

"The nature of gang cases is they tend to be interconnected anyway, and everyone under age 30 is on Facebook," Goddard said. "Word gets out before we even know who the witnesses are. Witnesses are literally getting people driving by their houses."

Court policies vary on social media depending on the jurisdiction.

Photography is heavily restricted in state courts, and news media may take pictures only with advance permission from a judge under strict rules. Using handheld cameras, including smartphones, is forbidden. Officials don't want photos of jurors or victims being tweeted or posted.

Texting and tweeting are allowed in Arizona state courts and have grown in popularity. The ethics hearings of former County Attorney Andrew Thomas were tweeted live to thousands.

In U.S. District Court in Arizona, however, judges often prohibit any Internet transmission.

For all the fears of disruptions, social media can help prosecutors and law enforcement.

Last month, the Arizona Court of Appeals ruled that prosecutors could use information gathered on social media to secure convictions. The case involved a gangster partially identified by his nickname and gang affiliations on his MySpace page.

Social-media technology will continue to evolve, forcing courts to continue to adapt.